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2023 Quick Links: Section 230

[My Quick Links publication process is broken. Once-a-year postings aren’t very useful LOL.]

* Palmer v. Savoy, 2021 N.C. Super. LEXIS 236 (N.C. Superior Ct. July 28, 2021). Snap qualified for Section 230 protection despite the plaintiffs’ invocation of the Lemmon design defect ruling: “each of Plaintiffs claims arise from and depend upon the actual content of the snaps taken by the individual Defendants, and [the court] further concludes that Plaintiffs arguments seeking to defeat Snap’s assertion of immunity are the very arguments our Court of Appeals rejected in Stubhub.”

* Doe v. Grant, 2021 Ariz. Super. LEXIS 1327 (Az. Superior Ct. March 31, 2021). Arizona’s mugshot statute preempted by Section 230.

* Blocher v. Mindgeek USA, Inc., 2023 WL 5017711 (D. Nev. Aug. 4, 2023):

Liability under Section 230 also is a pure question of law, as it requires determination of whether the defendant is “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Where the motion to dismiss concerns questions of law, additional discovery is not required. Therefore, as MindGeek’s motion to dismiss concerns only questions of law, no discovery is required to rule on the motion to dismiss.

* Britt v. Puppies, 2020 Ariz. Super. LEXIS 851 (Az. Superior Ct. Oct. 28, 2020):

There are facts from which a jury could determine that Defendants created and/or developed website content making the immunity under Section 230 of the CDA inapplicable and thus summary judgment is not appropriate. There is evidence Defendants’ conduct exceeded standard publication decisions. By manipulating information provided by third parties, Defendants changed the meaning and significance of that information as well as the manner in which the content was presented, thereby arguably materially contributing to the information and becoming a developer or creator of information/content. If the jury so finds, immunity under Section 230 would not apply.

With regard to Plaintiffs’ failure to warn claims, Section 230 immunity does not apply since the conduct at issue was Defendants’ conduct and not the conduct of third parties. Regarding the issue of duty on the negligence claim alleged in Count 3 of the Second Amended Complaint, the facts before the court establish that Defendants owed a duty to its website members to exercise reasonable care in providing services on the website, including providing warnings and/or a disclaimer as alleged in the Second Amended Complaint….

The evidence shows that PuppyFind undertook the responsibility of performing the service of providing information to website members about the sellers listing dogs on their website. Some plaintiffs in this suit paid PuppyFind a fee prior to purchasing a dog through the website. This fee entitled the buyer as a member to access all dog profiles and seller information on the website, including the ratings and reviews of the seller. PuppyFind owed a duty to use reasonable care in the performance of the task it undertook to provide such information to buyers/members on its website. To the extent there is a dispute regarding whether Defendants or a third party created any information at issue that is a matter for the jury to decide

* Lai v. Offerup Inc., 2023 Cal. Super. LEXIS 49865 (Cal. Superior Ct. July 28, 2023). OfferUp qualifies for Section 230 again.

* Langer v. San Fernando Valley Alarm, 2022 Cal. Super. LEXIS 5670 (Cal. Superior Ct. Jan. 20, 2022): “Defendant fails to establish applicability of the CDA based on the first element: “the defendant be a provider or user of an interactive computer service.” The mere operation of a website with later follow-up for price quotes, contract execution, and installation insufficiently establishes qualification.” [This is obviously wrong.]

* Cono v. Facebook, 2021 Cal. Super. LEXIS 80089 (Cal. Superior Ct. June 21, 2021). Facebook qualifies for Section 230 in account termination case. Section 230 also preempted Title II discrimination claim. Also, “The complaint does not allege specific facts to support an inference that Facebook has assumed a traditional public function, that the state coerced Facebook’s conduct, or that Facebook and the state are interdependent.”

* Defense Distributed v. Platkin, 2023 WL 6389744 (D.N.J. Sept. 29, 2023):

the content at issue in this case is the digital firearms information that DD published, from 2012 through 2020, to its own website, DEFCAD. Indeed, the basis for DD’s liability under the Challenged Statute is DD’s own posting of information onto its own website, not any “actions quintessentially related to a publisher’s role” that would implicate protection under § 230. Thus, because the Challenged Statutes does not seek to treat DD as the publisher of a third party’s statements, CDA protection under § 230 does not apply

* Wiener v. Miller, 2023 WL 6385816 (E.D.N.Y. Sept. 29, 2023). VRBO qualifies for Section 230:

The new allegations, principally that the Vrbo defendants “list and market” the property, and that “[t]he property in question was placed into the stream of commerce and made available for rental only by the Homeaway/Vrbo defendants,” fail to establish liability. Nor does the additional allegation that “[a]ll representations made with respect to the condition of the property were communicated to the Wiener family by the Homeaway/Vrbo defendants.” As determined previously, the defendants merely transmit information provided by third-party property owners and in no way “develop” the content of the messages. Section § 230 thus remains a complete bar to the claims for violation of §§ 349 and 350 of the New York General Business Law. This protection extends to the transmission of false statements like those alleged to have been made by the Miller defendants. See, e.g.Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019) (“As courts uniformly recognize, § 230 immunizes internet services for third-party content that they publish, including false statements, against causes of action of all kinds.”).

The Second Circuit’s holding in Force is dispositive on this point. As The Circuit noted under circumstances similar to those herein:

Plaintiffs seek to hold Facebook liable for “giving Hamas a forum with which to communicate and for actively bringing Hamas’ message to interested parties.” But that alleged conduct by Facebook falls within the heartland of what it means to be the “publisher” of information under Section 230(c)(1). So, too, does Facebook’s alleged failure to delete content from Hamas members’ Facebook pages. See LeadClick, 838 F.3d at 174 (stating that acting as the “publisher” under Section 230(c)(1) includes the decision whether to “withdraw” content).

Force v. Facebook, Inc., 934 F.3d 53, 65 (2d Cir. 2019). That Vrbo provided the Millers a platform to list their home for rental and published information the Millers provided nestles them squarely within the protections of Section 230. Nothing in the amended complaint overcomes that hurdle. The allegations that the Vrbo defendants failed to properly vet the information also fail, as Vrbo has done nothing more than provide “neutral assistance,” i.e. providing users a platform to input their own content. Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 589 (S.D.N.Y. 2018), aff’d, 765 F. App’x 586 (2d Cir. 2019) (“An ICS may not be held liable for so-called ‘neutral assistance’ or tools and functionality that are available equally to bad actors and the app’s intended users…To the extent Grindr contributes to the impersonating profiles, it is through such ‘neutral assistance.’”) (purgandum); Ynfante v. Google LLC, No. 22-CV-6831 (JGK), 2023 WL 3791652, at *3 (S.D.N.Y. 2023) (“Vetting and verifying are analogous to the quintessential duties of a publisher to screen and monitor content.”).

Plaintiffs’ allegation that Vrbo failed to disclose “that the information they are providing may be false,” is of no moment. As stated above, Section 230’s protections extend to the publication of false information. That the Millers may have submitted false information that Vrbo then published has no bearing on Vrbo’s liability, a conclusion buttressed by the fact that the communication from Vrbo that plaintiffs seek to rely on to establish liability explicitly states: “The host has provided the following information about safety features at the property. For the most up-to-date information, contact the property manager directly.

* Larson v. Freedline, 2023 Cal. Super. LEXIS 75495 (Cal. Superior Ct. October 5, 2023): “the TACC alleges that Cross-Defendant Hammerstone and Cross-Defendant Dean, as the administrators of the Facebook group, “allowed” the negative and false statements about Cross-Complainant o be posted on Facebook group page…The allegations appear to be based on the fact that the two Cross-Defendants were providers or users of the Facebook group page and seeks to hold them liable for statement that were not made by them. Thus, CrossDefendant Hammerstone and Cross-Defendant Dean are protected by Section 230 and the defamation claim against them fails.”

* Powers v. Airbnb, Inc., 2023 WL 7166246 (D. Hawaii Oct. 31, 2023):

Powers appears to only be challenging content created by Airbnb itself, not created by other content providers. See Complaint at ¶¶ 7, 10, 11; see also id. at ¶ 13 (“This complaint is … about Airbnb’s own content ….”)….On the basis of the allegations in the Complaint, it appears that Airbnb is not entitled to immunity under the CDA. To the extent that Airbnb seeks dismissal of the Complaint based on immunity pursuant to the CDA, the Motion is denied.

Related topics

* Patel v. Alphabet Inc., 2023 WL 4056327 (Ind. Ct. App. June 19, 2023). Patel claimed “he was injured because he could not find specified content on Google’s search engine or other companies’ search engines.” The court replies: “He has thus failed to allege any basis for finding that he had any right to the information he sought on Google’s search engine or that Google was precluded from rendering such information unavailable even if it had done so.”

* M.K. v. Google LLC, 2023 WL 2671381 (N.D. Cal. March 27, 2023). Google defeats lawsuit from a public school student using Google edtech that he claims was hacked and used to send inappropriate material.

* I’ve stopped comprehensively tracking the people search rulings. A couple I had flagged:

– Fry v. Ancestry.com Operations Inc., 2023 U.S. Dist. LEXIS 50330 (N.D. Ind. March 23, 2023)

– Mackey v. Peopleconnect, Inc., 2023 WL 2561621 (N.D. Ill. March 17, 2023).lip Copy

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